Borrero v. Federal Bureau of Prisons

Plaintiff,
a federal prisoner appearing pro se, brings this
civil action pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).[1] The matter has been referred to the
undersigned Magistrate Judge for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B).

Plaintiff
is presently confined at the Federal Transfer Center in
Oklahoma City, Oklahoma. Plaintiff is serving a federal
sentence entered in the United States District Court for the
District of Minnesota. In his Complaint filed October 30,
2017 (Doc. # 1), Plaintiff alleges that federal prison
officials are unlawfully confining him at the Federal
Transfer Center. He alleges that on August 18, 2017,
officials at the Bureau of Prisons Sentencing Computation and
Security Designation office advised his unit manager that he
was being transferred from the Federal Correctional Complex
in Beaumont, Texas, where he was then confined, to the
federal correctional institution in Milan, Michigan.
Plaintiff alleges that on August 22, 2017, he was transported
from the Beaumont facility to the Federal Transfer Center in
Oklahoma City. However, Plaintiff alleges that after he
arrived at the Federal Transfer Center he was advised by
officials at the Federal Transfer Center that officials at
the Bureau of Prisons Sentencing Computation and Security
Designation office had reassigned him for transfer back to
the Beaumont facility.

Plaintiff
alleges that the Bureau of Prisons officials' transfer
decisions have violated his due process liberty interests and
equal protection rights, and that the decisions constituted
unconstitutional retaliation for his previous lawsuits.

With
his Complaint, Plaintiff has filed a motion seeking leave to
proceed in forma pauperis in this action pursuant to
28 U.S.C. § 1915. A search of the public records of
federal courts on the PACER network reveals that Plaintiff is
subject to the provisions of 28 U.S.C. § 1915(g) because
he has filed numerous civil actions in other courts that have
been dismissed as frivolous or for failure to state a viable
claim for relief. See Borrero v. United States, 2010
WL 2539376 (D. Minn. 2010)(unpublished order)(finding 28
U.S.C. § 1915(g) applies to Plaintiff, denying his
motion for leave to proceed in forma pauperis, and
dismissing action due to his failure to pay the filing fee);
Borrero v. City of St. Paul, 2008 WL 5104216 (D.
Minn. 2008)(unpublished order)(finding Plaintiff subject to
“three strikes rule” set forth at 28 U.S.C.
§ 1915(g), denying his application for leave to proceed
in forma pauperis, and dismissing action for failure
to pay filing fee).

Consequently,
Plaintiff may not proceed in forma pauperis in this
action unless he shows he is in imminent danger of serious
physical injury. 28 U.S.C. §1915(g). To satisfy the
imminent-danger exception the litigant with three strikes
must make “specific, credible allegations of imminent
danger of serious physical harm.” Hafed v. Fed.
Bureau of Prisons, 635 F.3d 1172, 1179 (10th Cir.
2011)(quotations and citation omitted). “[V]ague and
utterly conclusory assertions” of physical injuries are
insufficient. White v. State of Colo., 157 F.3d
1226, 1231 (10th Cir. 1998). “Allegations of past harm
do not suffice; the harm must be imminent or occurring at the
time the complaint is filed.” Stine v. U.S. Fed.
Bureau of Prisons, 465 Fed. App'x 790, 793 (10th
Cir. 2012)(unpublished op.)(internal quotations and citation
omitted).

In an
apparent effort to evade the requirements of § 1915(g),
Plaintiff has attempted to cast his action as one seeking
federal habeas relief. Plaintiff has alleged only that he has
been transferred to the Federal Transfer Center in Oklahoma
City and that he has been advised he will be transferred to
the federal correctional facility in Beaumont, Texas, where
he was previously confined. He has not credibly demonstrated
he is under imminent danger of any harm, much less serious
physical harm.

Accordingly,
Plaintiff's Motion for Leave to Proceed In Forma Pauperis
should be denied, and the action should be dismissed without
prejudice unless Plaintiff pays the full $400.00 filing fee
within twenty (20) days of this date.

RECOMMENDATION

Based
on the foregoing findings, it is recommended that
Plaintiff's application seeking leave to proceed in
forma pauperis (Doc. # 2) be DENIED and that the cause
of action be DISMISSED without prejudice unless Plaintiff
pays the full filing fee within twenty (20) days of this
date. Plaintiff is advised of his right to file an objection
to this Report and Recommendation with the Clerk of this
Court by November 29th, 2017, in
accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72(b).
The failure to timely object to this Report and
Recommendation would waive appellate review of the
recommended ruling. Moore v. United States, 950 F.2d
656 (10th Cir. 1991); cf. Marshall v.
Chater, 75 F.3d 1421, 1426 (10th Cir.
1996)(“Issues raised for the first time in objections
to the magistrate judge's recommendation are deemed
waived.”).

This
Report and Recommendation disposes of all issues referred to
the undersigned Magistrate Judge in the captioned matter, and
any pending motion not specifically addressed herein is
denied.

---------

Notes:

[1]Although Plaintiff filed his initial
pleading on the form for a 28 U.S.C. &sect; 2241 federal
habeas action, he is a federal prisoner seeking relief for
allegedly unconstitutional actions/omissions occurring during
his confinement. Accordingly, the cause of action is
construed as one seeking relief under Bivens.
See Correctional Servs. Corp. v. Malesko, 534 U.S.
61, 70 (2001)(&ldquo;The purpose of Bivens is ...

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